Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On November 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) published its annual Performance and Accountability Report (PAR), revealing an increase in charge activity for FY 2016. According to the PAR, the EEOC received 91,503 charges in FY 2016, roughly 2,000 more charges than in FY 2015. EEOC staff resolved 97,433 charges, contributing to a net reduction of the charge workload.
As mentioned throughout the PAR, the agency continued to focus on priorities identified in its 2012 Strategic Enforcement Plan.1 Highlights of the PAR include:
- In FY 2016, the EEOC secured a total of more than $482 million in compensation for private- and public-sector employees through its enforcement efforts;
- Of that sum, $347.9 million resulted from the agency’s mediation and conciliation programs, or from other settlement agreements;
- The EEOC obtained $82 million in monetary relief for federal employees and applicants;
- The EEOC resolved 139 merits lawsuits in federal district courts, resulting in $52.2 million in awards for charging parties. A lawsuit on the merits involves an allegation of discrimination rather than one involving procedural issues;
- The agency successfully resolved 7,989 out of 10,461 mediations—a success rate exceeding 76%;
- Those mediations generated more than $163.5 million in benefits for claimants;
- The EEOC fielded more than 585,000 calls to its toll-free number, while its offices handled more than 160,000 inquiries; and
- The agency issued two new sub-regulatory guidance documents, as well as seven resource documents.2
Of the 86 merits lawsuits initiated this year, 55 involved individual charging parties, 13 involved multiple claimants, and 18 involved systemic claims. These actions were based on a wide variety of legal grounds, primarily alleging discrimination on the basis of disability (35), sex (25), retaliation (24), race (10), religion (6), and national origin (5). The EEOC also filed 28 subpoena enforcement actions. At the close of FY 2016, the agency had 165 active cases pending at the district court level, with nearly 30% raising systemic discrimination claims.
The most notable statistic was how much lower the total number of “merits” lawsuits initiated by the agency in FY 2016 (86) was than the comparable number filed in prior years. In FY 2015, for example, the EEOC filed a total of 142 merits lawsuits, which included 100 individual suits, 26 multiple “victim” suits and 16 systemic lawsuits. During the prior 10 years, the lowest number of lawsuits filed by the EEOC occurred in FY 2012, when 122 merits lawsuits were filed. Since 2005, the agency has typically filed between 250 and 381 lawsuits each fiscal year. According to informal discussions with individuals at EEOC headquarters, the marked decrease in FY 2016 stemmed from a combination of factors, including the time investment required by various systemic matters coupled with turnover at the agency and the loss of a number of attorneys over the last year. The EEOC wanted to ensure that it could properly prosecute the lawsuits it filed.
Other significant developments highlighted in this year’s PAR include the rollout of the EEOC’s Digital Charge System, the issuance of its second Strategic Enforcement Plan that essentially adopted most of its current priorities and added a focus on selected emerging issues such as the gig economy,3 and a summary of major litigation achievements and settlements.
A comprehensive review of key EEOC statistics, regulatory developments, and litigation initiated by the EEOC will be discussed in Littler’s upcoming Annual Report on EEOC Developments: Fiscal Year 2016, which will be published in early 2017.
1 See Barry Hartstein, EEOC Approves Strategic Enforcement Plan, Littler ASAP (Dec. 20, 2012).
2 The two sub-regulatory documents offer guidance on national origin discrimination and retaliation issues. See Kevin M. Kraham and Ryder Wentz, EEOC Guidelines Provide a Confusing Roadmap to Investigating Retaliation Claims, Littler Insight (Sept. 8, 2016); Kevin M. Kraham and Eunju Park, EEOC Releases Proposed Enforcement Guidance on National Origin Discrimination for Public Comments, Littler ASAP (June 3, 2016). The resource materials cover a wide variety of topics, including bathroom access rights for transgender employees, accommodations afforded to employees with HIV, and responsibilities concerning employees who are (or who are perceived to be) Muslim or Middle Eastern. These materials can be accessed through the EEOC’s website: https://www.eeoc.gov/laws/types/index.cfm.
3 See Barry Hartstein, EEOC’s New Strategic Enforcement Plan Takes Aim at Gig Economy, Other Emerging Workforce Issues, Littler ASAP (Oct. 18, 2016).